Portal de Periódicos da CAPES

Protection of sexual minorities since Stonewall: their lives, struggles, sufferings, love, and hope

2009; Routledge; Volume: 13; Issue: 2-3 Linguagem: Inglês

10.1080/13642980902758093

1744-053X

Phil C.W. Chan,

Judicial and Constitutional Studies

Click to increase image sizeClick to decrease image size Acknowledgements While preparations for this special double issue began in early 2005, they could not have been proceeded but for the facilities and assistance I received during my visiting fellowships and extended academic visits at Gender, Sexuality and Law Research Group, School of Law, Keele University; Lauterpacht Research Centre for International Law, University of Cambridge; Asia-Pacific College of Diplomacy, Australian National University; Faculty of Law, University of Ottawa; Asian Institute, Munk Centre for International Studies, University of Toronto; Institut für Öffentliches Recht, Albert-Ludwigs-Universität Freiburg; Department of Political Science, Vanderbilt University; and School of International Relations, University of St Andrews, between April 2006 and June 2008. Special thanks must also extend to Simon Chesterman, Juliette Gregory Duara, Andrew Harding, John and Lynette Lim, and Andrew Simester for their tremendous support and forbearance as I conducted the final and most critical stage of preparations for this special double issue while contending with my doctoral research at the Faculty of Law, National University of Singapore. Last but not least, I wish to thank Paul Serfaty, Frank Barnaby, and Taylor & Francis, especially Stacey Davies and Jessica Vivian, for their support and assistance to this project, as well as each and every anonymous reviewer for so kindly volunteering their valuable time to enable this special double issue to be an authoritative source of scholarly analyses of issues affecting persons belonging to sexual minorities, and ultimately all persons and societies, around the world. Notes As inscribed on a stone in New England Holocaust Memorial, Boston, United States. R. Rorty, Irony, Contingency and Solidarity (Cambridge: Cambridge University Press, 1989), xvi. Adopted and proclaimed by UN GA Res. 217A(III) of 10 December 1948. For discussions of the legal status and ethical significance of the Universal Declaration of Human Rights, see, e.g., C. Brown, ‘Universal Human Rights: A Critique’, International Journal of Human Rights 1 (1997): 41; T. Pogge, ‘The International Significance of Human Rights’, Journal of Ethics 4 (2000): 45; B. Simma and P. Alston, ‘The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles’, Australian Year Book of International Law 12 (1992): 82; L.B. Sohn, ‘The New International Law: Protection of the Rights of Individuals rather than States’, American University Law Review 32 (1982): 1. Universal Declaration of Human Rights, Art. 1. See Amnesty International, Breaking the Silence: Human Rights Violations Based on Sexual Orientation (London: Amnesty International, 1997); N. LaViolette and S. Whitworth, ‘No Safe Haven: Sexuality as a Universal Human Right and Gay and Lesbian Activism in International Politics’, Millennium: Journal of International Studies 23 (1994): 563. See American Psychiatric Association, ‘Position Statement on Homosexuality and Civil Rights’, American Journal of Psychiatry 131 (1973): 497. In 1998, the American Psychiatric Association unanimously adopted a Position Statement on Psychiatric Treatment and Sexual Orientation, American Journal of Psychiatry 156 (1999): 1131, that condemned the use of ‘reparative therapy’ for homosexuality, stating that ‘[t]he potential risks of reparative therapy are great, including depression, anxiety and self-destructive behavior, since therapist alignment with societal prejudices against homosexuality may reinforce self-hatred already experienced by the patient. Many patients who have undergone reparative therapy relate that they were inaccurately told that homosexuals are lonely, unhappy individuals who never achieve acceptance or satisfaction. The possibility that the person might achieve happiness and satisfying interpersonal relationships as a gay man or lesbian is not presented, nor are alternative approaches to dealing with the effects of societal stigmatization discussed. … Therefore, the American Psychiatric Association opposes any psychiatric treatment, such as reparative or conversion therapy which is based upon the assumption that homosexuality per se is a mental disorder or based upon the a priori assumption that the patient should change his/her sexual homosexual orientation.’ In 2000, the American Psychiatric Association adopted a further Position Statement on Therapies Focused on Attempts to Change Sexual Orientation (Reparative or Conversion Therapies), American Journal of Psychiatry 157 (2000): 1719, which expanded and elaborated the 1998 position statement. See E.A. Armstrong, Forging Gay Identities: Organizing Sexuality in San Francisco, 1950–1994 (Chicago and London: University of Chicago Press, 2002). (1981) 4 EHRR 149. Leung T.C. William Roy v. Secretary for Justice [2005] 3 HKLRD 657 (Hong Kong Court of First Instance); Secretary for Justice v. Leung T.C. William Roy [2006] 4 HKLRD 211 (Hong Kong Court of Appeal). 539 US 558 (2003) (Supreme Court of the United States). 478 US 186 (1986). Romer v. Evans, 517 US 620 (1996) (Supreme Court of the United States). Local Government Act 1986 (c. 10), s. 2A(1), as inserted by Local Government Act 1988 (c. 9), s. 28(1). The legislation was not applicable in Northern Ireland: Local Government Act 1988, s. 42(2). The legislation was repealed by the devolved Scottish Parliament for Scotland in 2000: Ethical Standards in Public Life etc. (Scotland) Act 2000 (2000 asp 7), s. 36(1) and Sch. 4, para. 1; and by Parliament in Westminster for England and Wales in 2003: Local Government Act 2003 (c. 26), s. 127(2) and Sch. 8(1), para. 1. A. Hartman, ‘Out of the Closet: Revolution and Backlash’, Social Work 38 (1993): 245, 245. 1(3) IHRR 97 (1994). Article 2(1) of the International Covenant on Civil and Political Rights, adopted and opened for signature, ratification and accession by UN GA Res. 2200A(XXI) of 16 December 1966 and entered into force on 23 March 1976, states that ‘[e]ach State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’ Article 26, ibid., states that ‘[a]ll persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’ See, e.g., R. v. M. (C.) (1995) 98 CCC (3d) 481 (Ontario Court of Appeal); R. v. Roy (1998) 101 DLR (4th) 148 (Québec Court of Appeal); Vriend v. Alberta (1998) 156 DLR (4th) 385 (Supreme Court of Canada); Reference re Same-Sex Marriage [2004] 3 SCR 698 (Supreme Court of Canada); Leung T.C. William Roy v. Secretary for Justice [2005] 3 HKLRD 657 (Hong Kong Court of First Instance); Secretary for Justice v. Leung T.C. William Roy [2006] 4 HKLRD 211 (Hong Kong Court of Appeal); National Coalition for Gay and Lesbian Equality v. Minister of Justice, 1999 (1) SA 6 (Constitutional Court of South Africa); National Coalition for Gay and Lesbian Equality v. Minister of Home Affairs, 39(4) ILM 798 (2000) (Constitutional Court of South Africa); Fourie v. Minister of Home Affairs, Case CCT 232/03, 30 November 2004 (Supreme Court of Appeal of South Africa); Minister of Home Affairs v. Fourie, Case CCT 60/04, 1 December 2005 (Constitutional Court of South Africa); Lawrence v. Texas, 539 US 558 (2003) (Supreme Court of the United States); Goodridge v. Department of Public Health, 440 Mass 309 (2003) (Massachusetts Supreme Judicial Court); In re Opinions of the Justices to the Senate, 440 Mass 1201 (2004) (Massachusetts Supreme Judicial Court); Sutherland v. United Kingdom (1997) 24 EHRR CD22 (European Commission of Human Rights); Salgueiro da Silva Mouta v. Portugal (2001) 31 EHRR 1055 (European Court of Human Rights); Smith and Grady v. United Kingdom (2000) 29 EHRR 493 (European Court of Human Rights); Young v. Australia, United Nations Human Rights Committee, Communication No. 941/2000, CCPR/C/78/D/941/2000, 6 August 2003 (cf., however, Joslin v. New Zealand, United Nations Human Rights Committee, Communication No. 902/1999, CCPR/C/75/D/902/1999, 17 July 2002). Final Constitution of the Republic of South Africa of 1996, Art. 9(3). Article 9(5), ibid., states that discrimination on any of the grounds specified in Article 9(3) is deemed to be unfair ‘unless it is established that the discrimination is fair’. Article 9(4), ibid., states that ‘[n]o person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.’ Ibid., Art. 10. For a comprehensive, cross-national discussion of the debate on the right of a person to marry another person of the same sex, see P.C.W. Chan, ‘Same-Sex Marriage/Constitutionalism and their Centrality to Equality Rights in Hong Kong: A Comparative–Socio-Legal Appraisal’, International Journal of Human Rights 11 (2007): 33. A. Belden Fields and Wolf-Dieter Narr, ‘Human Rights as a Holistic Concept’, Human Rights Quarterly 14 (1992): 1, 5. M. Minow, ‘Rights for the Next Generation: A Feminist Approach to Children's Rights’, Harvard Women's Law Journal 9 (1986): 1, 24. Equal Access Act of 1984, Title 20 USCA, ss. 4071–4. The First Amendment to the United States Constitution states that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.’ S. Sivakumaran, ‘Male/Male Rape and the “Taint” of Homosexuality’, Human Rights Quarterly 27 (2005): 1274. S.E. Merry, ‘Human Rights Law and the Demonization of Culture (and Anthropology along the Way)’, Political and Legal Anthropology Review 26 (2003): 55, 67. See also A.-B.S. Preis, ‘Human Rights as Cultural Practice: An Anthropological Critique’, Human Rights Quarterly 18 (1996): 286. A.A. An-Na`im, ‘Toward a Cross-Cultural Approach to Defining International Standards of Human Rights’, in Human Rights in Cross-Cultural Perspectives: A Quest for Consensus, ed. A.A. An-Na`im (Philadelphia, PA: University of Pennsylvania Press, 1992), 19, 27–8. S. Breyer, ‘Keynote Address’, American Society of International Law Proceedings 97 (2003): 265, 265, quoting R.B. Ginsburg and D.J. Merritt, ‘Affirmative Action: An International Human Rights Dialogue’, Cardozo Law Review 21 (1999): 253, 282. R.P. Alford, ‘In Search of a Theory for Constitutional Comparativism’, UCLA Law Review 52 (2005): 639, 644. Ibid., 641. See, e.g., V.C. Jackson, ‘Comparative Constitutional Federalism and Transnational Judicial Discourse’, International Journal of Constitutional Law 2 (2004): 91; C. McCrudden, ‘A Common Law of Human Rights?: Transnational Judicial Conversations on Constitutional Rights’, Oxford Journal of Legal Studies 20 (2000): 499; A.-M. Slaughter, ‘Judicial Globalization’, Virginia Journal of International Law 40 (1999–2000): 1103; L.-A. Thio, ‘Beyond the “Four Walls” in an Age of Transnational Judicial Conversations: Civil Liberties, Rights Theories, and Constitutional Adjudication in Malaysia and Singapore’, Columbia Journal of Asian Law 19 (2005–6): 428. C. Hemmings, ‘What's in a Name? Bisexuality, Transnational Sexuality Studies and Western Colonial Legacies’, International Journal of Human Rights 11 (2007): 13, 16, quoting P.A. Jackson, ‘Pre-Gay, Post-Queer: Thai Perspectives on Proliferating Gender/Sex Diversity in Asia’, Journal of Homosexuality 40 nos 3–4 (2001): 1, 8. See F.-F. Ruan, ‘China’, in Sociolegal Control of Homosexuality: A Multi-Nation Comparison, ed. D.J. West and R. Green (New York: Plenum Press, 1997), 57. A.A. An-Na`im, ‘Introduction’, in Human Rights in Cross-Cultural Perspectives: A Quest for Consensus, ed. A.A. An-Na`im (Philadelphia, PA: University of Pennsylvania Press, 1992), 1, 3. Adopted by United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons convened under UN GA Res. 429(V) of 14 December 1950 on 28 July 1951 and entered into force on 22 April 1954. Ibid., Art. 33(1). P.C.W. Chan, ‘The Protection of Refugees and Internally Displaced Persons: Non-Refoulement under Customary International Law?’, International Journal of Human Rights 10 (2006): 231. Entered into force on 4 October 1967. (2003) 216 CLR 473. K. Yoshino, ‘Covering’, Yale Law Journal 111 (2002): 769; K. Yoshino, Covering: The Hidden Assault on Our Civil Rights (New York: Random House, 2006). Egan v. Canada (1995) 124 DLR (4th) 609, 619 (per La Forest J., Supreme Court of Canada). R.E. Howard-Hassmann, ‘Gay Rights and the Right to a Family: Conflicts between Liberal and Illiberal Belief Systems’, Human Rights Quarterly 23 (2001): 73, 79. [2006] IEHC 404. Bunreacht na hÉireann (Constitution of Ireland) 1937, Preamble. See http://yogyakartaprinciples.org.